Court Modernisation in England and Wales: decoding two new reports

For those following the juggernaut that is Her Majesty’s Courts and Tribunals Service’s online court programme for England and Wales, there are two new must-read publications. The first is the latest update on the reform programme. The second is a research report on implementing video hearings in tax appeals. Those with more detailed professional or personal reasons for following the process can gorge themselves on the monthly bulletins covering progress, the latest of which was published earlier this month or follow the HMCTS blog, the latest edition of which also covers the video research.

Before considering the content of the update, let us note the unavoidable problem of such a document. Within it, challenges arise only to be victoriously confounded. Optimism abounds. Sunshine bathes the uplands. Caution and caveats exist only to be overcome in the pursuit of progress. ‘Our reform programme spans the full range of our work and is undeniably ambitious. There are more than 50 distinct projects (outlined in the projects summary on page 22) working across all jurisdictions (in criminal, civil, family and tribunals), and we are investing more than £1bn over six years. This is an historic opportunity to make a system we care about deeply work better.’ And, undoubtedly, this is an ambitious programme. It is being vigorously led. Much of it, frankly, is going well.

And the report would only be the more persuasive if it acknowledged – as it does not – that informed sources have raised pretty big doubts about crucial aspects. In this account of the last six months, you would not know that the National Audit Office announced in May that ‘We have little confidence that HMCTS [Her Majesty’s Courts and Tribunal Service] can deliver this hugely ambitious programme’. Or that the Public Accounts Committee later told the HMCTS to deal with its concerns over ‘how it will identify and evaluate the impact of changes on people’s access to, and the fairness of, the justice system, particularly in relation to those who are vulnerable.’ A page on ‘who we are working with’ omits the two supervisory bodies. And, in all the highlighted sections of work ‘over the next 18 months’, HMCTS is silent in meeting the concerns of the NAO or the PAC.

All this is perhaps not the HMCTS’s fault alone. It is the style of modern government – not to say modern management. And the danger of this approach is that you can start to read the document forensically – a bit like Soviet-era citizens approached Izvestia. For example, if you begin to deconstruct the section on ‘why is change needed?’, there turns out to be a bit of a lacuna. You might have expected some statement about improving the access to justice of those using our courts and tribunals so that more people can use public adjudicatory mechanisms to achieve cheaper, if not better, results. After all, a debate has flourished on this blog as to what access to justice performance indicators the HMCTS might draft to meet the PAC’s concerns.

How does the HMCTS actually articulate its objective? ‘A system where effectiveness for the individual citizen and efficiency for the taxpayer go hand-in-hand. Designing our processes around the citizens who need them makes the system less forbidding, more considerate of others’ time and convenience, as well as more efficient.’ Well, try putting some numbers on that.

The problem of the underlying approach is that it is process-orientated. The promise of the work of Margaret Hagan in legal design, the Civil Resolution Tribunal Solution Explorer or the plans for an online pilot for the Australian state of Victoria are that they are directed to redesigning the process with the aim (taken from the preceding Victorian review) ’to improve access to justice … with an everyday legal problem or dispute.’ More people, more cheaply, more easily should be able to resolve their legal problems through a public adjudication system.

Ms Hagan has reported the consequence of the different approach: ‘I have been attending many court innovation conferences over the past year, and taking notes about what points of friction + failure arise as the institutions try to be more experimental, and more human-centered in their work. One very interesting point, that I had not expected, was the suspicion that the frame of ‘user-centered design’ as an innovation method might actually be a smokescreen for cost-cutting. That the dressing of innovation was a mean to placate staff and other stakeholders, while their budgets were cut and less human-intensive services were put in place.’

In this context, the update boasts of the savings of more than a third in staffing which are expected: ‘We will be a smaller organisation after these reforms. We have around 16,300 (full time equivalent) staff at present, of whom 2,100 are temporary/agency staff. At the end of the programme we anticipate having between 10,000 and 11,000.’ You would not quite guess the current controversy over the court closure programme from the bland assertion in the report that ‘It is it not right to view the historic distribution of courts and tribunals as a given; nor to keep underused courts open when the cost of running them could be put to better use.’

Staffing is relevant to the research on video appeals. Starting with tax was entirely sensible – a relatively small area dealing with defined issues and with a cohort of appellants who are probably better educated and more IT literate than, say, social security claimants. One appellant even expressed his gratitude that he could settle his tax affairs from overseas. The report notes how necessary was the staff assistance in the hearings (something unlikely to be continued on full roll out) and it is clear that a high degree of technical assistance was required to get the show on the road: ‘The video hearings administrative team, located remotely, liaised with appellants, representatives, and HMRC before a video hearing started to resolve any technical issues and to ensure users had successfully logged into the video hearing. Most hearings began on time with minor technical difficulties. A small number experienced more serious difficulties on the day that needed to be resolved before the hearing took place. For instance, one hearing had to be rescheduled twice. In the first hearing, there were technology difficulties but the Judge ultimately adjourned it following an application from the appellant’s representative to allow the appellant to attend. The second hearing was rescheduled due to further technology difficulties. In order to mitigate against any further technical issues, on the third attempt the video hearings team prepared a room for the HMRC representative in a co-working space and for the appellant’s representative in a local courtroom. The video hearing was then successfully completed.’

Even then, the researchers could only actually observe a grand total of eight video hearings – including one that sounds like a complete disaster. They heard a further two which were supposed to be on video but had to be undertaken by telephone because the technology flopped. Eight cases barely makes a research project. This was an anecdotal assessment of the state of play in a highly managed, small number of cases. And there is no problem with that if correctly labeled. The findings should inform further iterations of the programme. But, this report should not be cited as any kind of endorsement of how video hearings will work with other cohorts of court and tribunal users or even in the same tribunal without the high levels of additional staff assistance that were supplied. Researchers always end with a recommendation for more and the LSE team did, in this case, rightly recognise: ‘The research is small scale and exploratory. We recommend that the video hearings pilot is expanded, data collection on the process continues, and data on outcomes is collected.’

If interested in the field, you should read these reports to formulate your own views. At the end of the day, HMCTS’s caution about invoking improved access to justice is probably right. This is an ambitious, multi-layered series of programmes designed to digitalise old-fashioned, paper-based programmes. It is designed to make major staff savings and to reduce the public court estate – the consequent impact of increased travel times and costs by litigants, witnesses and representatives is not reported. But, no wonder those like the good Ms Hagan are disappointed. For those wishing to take the opportunity to re-engineer state adjudication procedures to improve access to justice: move on, there is little to see here.